Bonum Certa Men Certa

Legal Analysis Reveals That EPO Principal Director for Human Resources (Bergot) Resorts to “Gross Violation of Due Process”

Summary: Why the EPO's attack on staff representatives is so outrageous, based on a legal letter sent to the UN's Special Rapporteur for Freedom of Speech and Expression, Special Rapporteur for Freedom of Association, Special Rapporteur for Human Rights Defenders, Jesper Kongstad (Administrative Council), and Director of the Netherlands Patent Office

IN order for people to understand just how out of line the EPO's management has stepped, at this point in time we may need to show some legal documents which explain what the EPO's management is actually doing.



The lawyers' response which we published here earlier today we now have in textual form. This reply is important as it helps highlight some of the things wrong with the EPO's approach. It was also copied to some staff at the United Nations.

Having received it from several sources (not just one), we now wish to post this as HTML. "This one is already two-weeks old," told us one source, "but just came out." This source is aware that many people are becoming aware of this response (as they probably ought to). "It will probably reach you by more than one correspondent," we were rightly told.

Here it is without any annotation or emphasis:

SCHWAB | FLAHERTY | ASSOCIES

Attention : Nouvelle address 7, rue de Candolie CH-1205 Geneve

Alexandre J . Schwab Avocat - MBA

Edward Patrick Flaherty Attorney at law - Member of the US Supreme Court and Massachusetts Bar Membre de l'Ordre des Avocats de Geneve

Michael Ford Shanahan Attorney at law - MBA Member of the US Court of Appeals for the Armed Forces and Colorado Bar

Can Burak Bayhan Attorney-at-Law Economist/stock & FX Expert Member of the Istanbul Bar Association

Monika Ona Bileris Attorney- at-Law Member of the New York Bar (USA)

RECOMMANDEE & PAR COURRIEL

Mr Jesper Kongstad Director General Danish Patent and Trademark Office Helgeshoj Alle 81 2630 TAASTRUP DANEMARK e-mail: -

Mr Derk-Jan De Groot Director--Netherlands Patent Office P.O. Box 10366 2501 HJ DEN HAAG PAYS-BAS e-mail: -

Geneva, 23 November 201:5

Concerne: Ms Elizabeth Hardon v European Patent Office (EPO)

Dear Sirs:

Further to my three (3) prior letters to you concerning my client, EPO Staff member Ms. Hardon, dated 8 and 21 October, and 11 November 2015, respectively1 by which we __________________________________ 1 These letters detailed a number of procedural and substantive detects in the pending disciplinary proceedings against Ms. Hardon, which are clearly directed against her on account of her actions in her capacity, to wit: *the charge letter of 4 September 2015 (case N€°. - --detailed in my letter and attachments of 8 October 2015) did not state the name of the complainants (in violation of ILOAT Judgment N€° . 2014 which holds that it is "contrary to due process to require an accused staff member to answer unsubstantiated allegations made by unknown persons"), the source of the purported statements asserted as misconduct in the letter, or any evidentiary basis for the initiation of the investigation against Ms. Hardon. *the charge letter of 4 September makes clear that the claims against Mr. Hardon (that she "orchestrated and promoted" a harassment campaign against an EPO colleague, and that she later attempted to intimidate other staff representatives) were based on confidential meetings of the Local Staff Committee in Munich, which is both an egregious breach of confidentiality as well as the right of all EPO staff members to exercise their freedom of speech and association. *the charge letter of 4 September claims that a single (indeed misquoted) sentence expressed in a confidential discussion among duly elected EPO staff representatives, and at best an assertion of an opinion rather than one of fact, amounts to actionable "harassment". *As indicated in my letter of 8 October, the charges of 4 September 2015 are very similar to specious harassment charges brought against Ms. Hardon nearly two years ago, also in her capacity as a staff representative, also based on a single sentence, expressing the collective opinion of several staff representatives, contained in a confidential email sent to 16 recipients who were either elected staff representatives or experts retained by such




Page | 2

demanded that you initiate an independent investigation into her claims of institutional harassment, Ms. Hardon was now been advised by letter dated 17 November 2015 from the Principal Director for Human Resources, - , that she was suspended immediately from service until further notice, on the basis of allegations of alleged harassment detailed in my prior letters to you referenced above (extract attached). Additionally, Ms. Hardon is now accused of conspiring with a suspended EPO staff member from DG3 "to systematically and repeatedly disseminate defamatory information", and to have communicated "with various members of news outlets, throughout 2013 and 2014, disclosing without authorisation non-public information". It appears obvious that the Office will move swiftly to terminate Ms. Hardon' s appointment, which has clearly been its bad faith intention all along.

Ms. Hardon has denied any and all allegations of misconduct against her and continues to do so. The latest specious and vexatious allegations of misconduct now form the subject of yet another disciplinary proceeding. This brings the number of disciplinary complaints which are being simultaneously prosecuted against her to three (3). In and of itself, this would tend to confirm her assertions of institutional harassment. It also makes it clear that the latest allegations can only be seen as a further, irregular continuance of the institutional harassment alleged in the previous demand letters. This is particularly true in view of the fact that one of the procedural defects detailed in my letter to you of 11 November 2015 (namely, that Ms. Hardon's accuser was not disclosed to her) has now been resolved in part with the revelation that the complainant is in fact -, the EPO Principal Director for Human Resources. The fact that the complainant is the very same person who is prosecuting all three disciplinary cases against Ms. Hardon is in itself a gross violation of due process.

The suspicion of serious procedural irregularities is further supported by the fact that a considerable number of critical documents to which Ms. Hardon is entitled to review as part of her fundamental right of defence were missing from the annexes to the letter informing Ms Hardon of Disciplinary Procedure N€°. D - dated 17 November 2015 (attached). Her response and request for such missing documents is also attached hereto.

Additionally, it is our information and belief that the Enlarged Board of Appeal decision (Art. 23/15 of 17 September 2015) found that the charges against the staff member primarily accused in case C- and the related case - were not substantiated. Accordingly, it is __________________________________ representatives. Despite the irregular and ultra vires finding of the Investigative Unit that the charges were "founded and proven", the responsible Disciplinary Committee, properly mandated to evaluate whether the conduct of Ms., Hardon was incompatible with several articles of the EPO Service Regulations, found unanimously in Ms. Hardon's favor and rejected the charges against her, recommending that the President close the proceedings and reimburse her legal fees. Despite this unanimous recommendation, the President imposed a down-grading upon Ms. Hardon, which decision is under appeal at the ILOAT. They also parallel prior false charges of harassment levied against Ms. Hardon for "campaigning against" another staff member, which charges were set aside by the ILOAT in its Judgment N€°. 2984. *As pointed out in my letter and attachment of 8 October, the initiation of repeated disciplinary proceedings against Ms. Hardon on the basis of specious and frivolous misconduct charges, all of which to date have been rejected by the EPO Disciplinary Committee and the ILOAT, is further incontrovertible evidence of the EPO's ill will towards Ms. Hardon in particular and its bad faith against staff representatives generally, which numerous hostile and intimidating attacks against her personally have set back Ms. Hardon's career leading to financial as well as professional injury, damage to her dignity and reputations, causing significant injury to her health. *Ms. Hardon's suspicion that she is the target of an orchestrated campaign by senior EPO officials to drive her out of the Office on false grounds is confirmed in her letter attached to my letter to you of 21 October 2015, where it is revealed that the complainant in Case N€°- is not the staff member alleged to have been harassed, but in fact - who is also prosecuting the case against Ms. Hardon, a further gross violation of fundamental due process.




Page | 3

a legal impossibility for Ms. Hardon to have been an accomplice with her colleague when his actions were not found to be misconduct, requiring that all charges against Ms Hardon arising out of case C- and the related case C- be forthwith dismissed.

Finally, at the point in time when the Investigation Unit invited Ms. Hardon to comment on the summary of findings in the latest investigation case C- the Office Administration had already decided to initiate a disciplinary procedure against her incorporating allegations from Case-. This action on the part of the Office Administration appears to have been motivated by her actions in rightly declining to submit to an interview when she had already been identified as a target of the subject investigation2>. Her "refusal" to attend an interview pending clarification of deficiencies in the invitation was not in any way a refusal to cooperate with the investigation. The Office Administration has apparently responded by making the allegations from C- the subject of a disciplinary action (see enclosed annex) despite the fact that the case had not yet been closed. As a matter of fact, at the point in time when the disciplinary report was issued, i.e., 17 November 2015, the deadline for the submission of Ms. Hardon's written comments on the summary findings pursuant to Art. 18 (1) of the EPO Investigation Guidelines (which was set for 23 November 2015) had not yet expired. In addition to violating the cited jurisprudence, these actions would also appear to be in breach of Art. 18 (2) and (7) of the EPO Investigation Guidelines and, moreover, would appear to undermine the integrity of the investigation.

You have thus far failed to take any action in response to Ms. Hardon's requests for an investigation into the harassment claims against her, in violation of applicable ILOAT jurisprudence3. On behalf of Ms. Hardon, I therefore repeat once again her request for an

__________________________________

2 In the recent UNDT decision Judgment No. UNDT/2011/081 (Cabrera), the level of due process to which an international civil servant is entitled when he or she becomes of the "target" of a misconduct investigation was clearly stated: "In conclusion, the Tribunal is of the opinion that the assurances of due process and fairness ... mean that, as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation procedure and at any stage, he has the right to invoke due process with everything that this guarantees. Moreover, the Tribunal finds that there is a general principle of law according to which, in modern times, it is simply intolerable for a person to be asked to collaborate in procedures which are moving contrary to his interests, sine processu."

"It is a fundamental principle of due process that where an individual has become the target of an investigation,then that person should be accorded certain basic due process rights ...as soon as a person is identified, or reasonably concludes that he has been identified, as a possible wrongdoer in any investigation procedure and at any stage, he has the right to invoke due process with everything that this guarantees. Moreover, the Tribunal finds that there is a general principle of law according to which, in modem times, it is simply intolerable for a person to be asked to collaborate in procedures which are moving contrary to bis interests, sine processu."

ILOAT Judgments No. 2475 and No. 295 also confirm this view, dictating that investigations must "be conducted in a manner designed to ascertain aU relevant facts without compromising the good name of the employee and that the employee be given an opportunity to test the evidence put against him or her and to answer the charge made."

The fundamental requirements of due process set out above have indisputably been egregiously ignored in Ms. Hardon's case to date, which she shall vigorously contest in all fora available to her.

3 ILOAT Judgment N€°. 3485 at consideration 16: "It is not controverted that some of [the complainant's] complaints went unanswered. This shows that there was a degree of indifference regarding his express concerns. This was not only another aspect of harassment but also a breach of the ICC's duty of care towards the complainant which, in addition to the breach of due process, entitles him to moral damages [...]." And ILOAT Judgment N€°. 3377 at consideration 14: "The evidence further shows that the Organization also breached its duty to ensure that his complaints were addressed in a proactive manner ....", and at consideration 26: "Firm precedent has it that when an official makes allegations of harassment, she or he is entitled to have




Page | 4

immediate, independent investigation by an external authority into her harassment allegations, including the most recent specious allegations against her, and further, that you take immediate, meaningful interim measures to stop such alleged institutional harassment of Ms. Hardon, including the lifting of her irregular suspension, and prevention of EPO's intended imminent termination of her appointment. Please treat this demand as a further request for a final administrative decision.

Thank you for your courtesy and attention; we look forward to your prompt reply.

Enclosures Cc: client UN Special Rapporteur for Freedom of Speech and Expression UN Special Rapporteur for Freedom of Association UN Special Rapporteur for Human Rights Defenders

__________________________________ them dealt with in accordance with the rules and procedures in force (see Judgment 2642, under 8). If an organisation fails to do so, it breaches not only its own policies and rules, but also its duty of care towards the official."

And ILOAT Judgment N€°. 3347, at consideration 14: "However, given the serious nature of a claim of harassment, an international organization has an obligation to initiate the investigation itself in a timely manner and the corollary obligation of ensuring that the internal body responsible for investigating and reporting on claims of harassment has the necessary resources to carry out that responsibility (see Judgment 3069, under 12)."

And Judgment N€°. 3337 at consideration 11: "The Tribunal has consistently stressed the serious nature of allegations of harassment in the workplace and the need for international organisations to investigate such allegations promptly and thoroughly. This is a function of the organisation's duty of care to its staff members to uphold their dignity. [... ] €»



There may still be some typos or unintentional omissions above. The intentional omission is the name Bergot (c/f part one, part two, part three, and part four of "EPO: It's Like a Family Business"), which isn't just engaging in some kind of 'cat fight' here as she is clearly the "complainant [and also] the very same person who is prosecuting all three disciplinary cases against Ms. Hardon" which is "in itself a gross violation of due process."

Comments

Recent Techrights' Posts

SLAPP Censorship - Part 163 Out of 200: Attack on Computer Science and on Computer Security (or Associating Back Doors and Kill Switches With "Security")
Nowadays there are many who pretend to be security professionals
No Allure in Omarchy, the Political Hyenas Only Give it More Free Publicity
To me, Omarchy seems like a weak project because of the slop (an HR problem)
Don't Let Bastards and Haters Grind You Down
They say "jealousy is the sincerest form of flattery"
Goodbye, Dolly
This week we say "goodbye, Dolly."
 
Clownflare Sees GNU/Linux and ChromeOS at Over 13% in Bahamas
Narrowing down to desktops and laptops, and judging by Web requests that go through Clownflare, many people there use GNU/Linux or Google's 'bastardised' version of it (with spyware preloaded)
Richard Stallman Complains That Linux Gives a Bad Name to GNU and Asks for Feedback on What's Wrong with Systemd (and Wayland)
Maybe some people want to send him a detailed, polite explanation
GNU/Linux Does Not Need Social Control Media to Succeed
When it comes to Social Control Media, Richard Stallman was right
Increasing Focus on Patent Injustices
We'll soon cover the EPO a lot more
There's No "Next XBox"
Nothing comes ahead except layoffs and price hikes
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 26, 2026
IRC logs for Wednesday, August 26, 2026
Gemini Links 27/08/2026: Conditioning, Lagrange 1.21, and Computer Games
Links for the day
Links 26/08/2026: Patent Troll InterDigital Utilises Software Patents in Unconstitutional Court, "WikiHow Launches Copyright Infringement Suit Against" LLM Plagiarism
Links for the day
The Register MS Has New Fake Article ("SPONSORED FEATURE") With "AI" 21 Times In It
The Register MS is one among many culprits
Gemini Links 26/08/2026: “Doomsday Clock”, Rwanda Genocide, and Boasting About Using LLMs Instead of Writing Code (Due to Employer's Pressure)
Links for the day
Twitter is Not an API or a Communication Site, It's a Really Bad Site That Forces You to be Enslaved by Its Algorithm (Amplifying Its Owner's Worldviews)
the crackdown on Nitter means we should all avoid accessing or linking to x.com (Twitter)
GNU/Linux Rose in Caribbean Islands
combined population is measured at 44,182,048
IBM's Quantum Computing Lies Explained Again by Sabine Hossenfelder
To become a CEO at IBM one must lie
Controlling Culture and Social Behaviour by Digital Locks
if you don't fully control the technology in your possession, then you're not using that technology, this technology covertly uses you
Links 26/08/2026: Election Bribery (aka Vote-Buying) Deemed "OK" in the US, "Nitter is Shutting Down After a Cease and Desist Letter" by MElon
Links for the day
Analogue So Much Better and Faster
From what we can gather, the tram ticketing system does not use Windows; we never saw it crashing or rebooting (or showing some Windows logo) in decades, so we assume it runs some kind of Linux
Linux Today Dumped All Social Control Media Last December
Linux Today seems to have concluded that all Social Control Media is just a waste of time
Don't Say X.com is OK Because People Can Access It by Alternative Means
Can Mozilla please clarify who inside Mozilla greenlit a return to X.com?
The Reach of techrights.org Is Increasing
We are on the side of women victims
SLAPP Censorship - Part 162 Out of 200: An Outline of Events
An outline of events
Pushed to Live
We still have some other work - stuff related to the editing of pages - which is work in progress and has been subjected to testing for many months
GNU/Linux Measured at 10% in Germany, Based on Cloudflare
It's peaking late at night
Richard Stallman's GNU Project Began 42 Years Ago With GNU Emacs and More
GNU Project announced almost 43 years ago (next month it's the anniversary)
Fake Articles "Sponsored by HPE" Published in The Register MS
Selling proprietary products as 'alternatives' to other proprietary products
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, August 25, 2026
IRC logs for Tuesday, August 25, 2026
Gemini Links 26/08/2026: Journal Plans and Extending Finger Protocol
Links for the day
How Many Web Requests From "Linux"...
If one was to assert that "Linux == Android" or "Android == Linux" (it's not that simple), then "Linux" already accounts for about 30% of Web requests
An Explainer About Injunctions Done Wrong - Part I - Saving Money Where Money Cannot be Saved
Of course Garrett not being able to afford his own case is a key factor here
Links 25/08/2026: "U.S. Marines Cancel Drill With South Korea", "UK Prime Minister Burnham Arrives in Ukraine"
Links for the day
Not for the First Time This Week, Site Called "It's FOSS" is Promoting Software That is NOT FOSS (And It Knows It)
Is this an editorial choice? Advertising? What is it?
Gemini Links 25/08/2026: Geometry and FidoNet History, "Goodbye I2P and Yggdrasil, Welcome Telnet!"
Links for the day
Links 25/08/2026: Microsoft Salaries Leaked Again, "Oasis Photograph Sparks Copyright Lawsuit"
Links for the day
Microsoft Trots Out Its Propaganda Agent Preston Gralla to Make It Sound Like Microsoft Breaks Up With China (Reality: Microsoft Got Dumped by China)
This discredits any publisher that plays along
GNU/Linux Did Not Start in 1991 and America Wasn't Discovered by Europeans
it'll be 43 next month
SLAPP Censorship - Part 161 Out of 200: Low Standards in Defamation Cases Just Muddy the Waters and Distract From Legitimate Cases
The judge at the trial said that Garrett's case was a waste of the court's money
Rolling Out Some Changes Soon
To the regular reader no change will be seen
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 24, 2026
IRC logs for Monday, August 24, 2026
Gemini Links 25/08/2026: Separated by Plexiglass, Low-Tech Information Networks, Jörg Rippel Comes to Geminispace
Links for the day